UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 18-1196


ELTON CANSLER,

                   Plaintiff – Appellant,
             v.

ALAN A. HANKS,

                   Defendant – Appellee,

             and

EDWIN C. ROESSLER, JR.; FAIRFAX COUNTY,

                   Defendants.


Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, District Judge. (1:16-cv-01589-LO-TCB)


Argued: February 19, 2019                                     Decided: June 17, 2019


Before MOTZ, KING, and THACKER, Circuit Judges.


Affirmed by unpublished opinion. Judge King wrote the opinion, in which Judge Motz
and Judge Thacker joined.


ARGUED: Victor M. Glasberg, VICTOR M. GLASBERG & ASSOCIATES,
Alexandria, Virginia, for Appellant. Kimberly Pace Baucom, FAIRFAX COUNTY
ATTORNEY’S OFFICE, Fairfax, Virginia, for Appellee. ON BRIEF: Maxwelle C.
Sokol, VICTOR M. GLASBERG & ASSOCIATES, Alexandria, Virginia, for Appellant.
Elizabeth D. Teare, County Attorney, Karen L. Gibbons, Senior Assistant County
Attorney, Robert M. Hardy, FAIRFAX COUNTY ATTORNEY’S OFFICE, Fairfax,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                            2
KING, Circuit Judge:

      Plaintiff Elton Cansler initiated this litigation under 42 U.S.C. § 1983 by filing a

complaint in the Eastern District of Virginia against Officer Alan A. Hanks of the Fairfax

County Police Department, alleging his use of excessive force with a taser in violation of

the Fourth Amendment. A jury found against Cansler and in favor of Officer Hanks,

concluding that excessive force was not used.        Cansler challenged the verdict by

requesting judgment as a matter of law, pursuant to Federal Rule of Civil Procedure

50(b). The court, however, ruled that the verdict is sufficiently supported by the evidence

and denied the motion. On appeal, Cansler contends that the court erred in its Rule 50(b)

ruling and also in failing to give a proposed instruction regarding taser use. As explained

herein, we affirm.



                                            I.

                                            A.

       On December 22, 2016, Cansler filed his complaint in the Eastern District of

Virginia against Officer Hanks and two other defendants. 1 The complaint contains three

counts, each of which emanated from the September 2015 tasing of Cansler. The first

count, however, alleges the only claim pertinent to this appeal. Cansler therein alleged

that Hanks used excessive force with a taser, in contravention of the Fourth Amendment.


      1
        In addition to suing Officer Hanks, Cansler alleged claims against Fairfax
County and the chief of the county’s police department.


                                            3
       After conducting discovery, Cansler and Officer Hanks filed cross-motions for

summary judgment, each of which the district court denied. By his motion, Hanks sought

qualified immunity and relied on the “objective reasonableness” standard — the multi-

factor analysis applicable to excessive force claims under the Supreme Court’s decision

in Graham v. Connor, 

(1989). Pursuant thereto, Hanks argued that he was

entitled to qualified immunity because he had not committed a constitutional violation.

Hanks also contended that, if his actions somehow contravened the Fourth Amendment,

he had not violated any clearly established constitutional right.

       In October, 2017, the district court denied Hanks’s request for qualified immunity

and ruled that genuine issues of material fact justified a trial on the excessive force claim.

More specifically, the court identified factual questions concerning whether Cansler had

“posed an immediate threat to the safety of Officer Hanks or others,” and whether he had

“actively resist[ed] arrest.” See Cansler v. Hanks, No. 1:16-cv-01589, at 3 (E.D. Va. Oct.

25, 2017), ECF No. 114.

                                             B.

                                              1.

       In November, 2017, the district court conducted a jury trial on Cansler’s excessive

force claim. Among the witnesses was Officer Hanks, who described the pertinent events

of September 24, 2015. 2 Hanks was on patrol in Fairfax County when he was informed



       2
        Under the standard of review applicable to our review of the post-trial Rule 50(b)
ruling, we accept and recite the facts in the light most favorable to Hanks, as the
(Continued)
                                              4
by radio that a pair of sunglasses had been stolen from the counter at a local bank. As

part of that notification, he was provided with a description of the suspect: African-

American male wearing a grey t-shirt and a black hat with a silver rim. Because a

different police officer had already responded to the bank, Hanks promptly searched an

area near the bank, looking for the person described.

      As he was driving near the bank, Officer Hanks identified a person — that is,

Cansler — who matched the description provided. Hanks pulled his police car over

where Cansler was walking with his hands in his pants pockets. Exiting his police

vehicle, Hanks approached Cansler and asked him to remove his hands from his pockets.

When Hanks inquired about whether Cansler knew about a missing pair of sunglasses,

Cansler replied that he did. Cansler then reached into a pants pocket, produced a pair of

sunglasses, and handed them to Hanks.

      Officer Hanks explained that, as they spoke, Cansler again placed his hands into

his pockets. As a result, Hanks instructed Cansler not to conceal his hands. Cansler

complied with that request and removed his hands from his pockets, revealing the inside

of his right pocket. Attached to that pocket was a metal clip, which Hanks recognized as

part of a pocketknife. Upon observing the knife, Hanks grabbed Cansler’s right arm and

ushered him toward the police car. Hanks applied force to Cansler’s back, pressed him

against the police car, and told him to place his hands on the hood. This physical contact



prevailing party at trial. See U.S. Equal Emp’t Opportunity Comm’n v. Consol Energy,
Inc., 

, 141 (4th Cir. 2017).


                                            5
led to some jostling between Cansler and Hanks, with each man applying body pressure

against the other. At some point, Cansler jerked an arm upward, seeking to free it from

Hanks’s grip.

      Officer Hanks soon began to tire and decided to escalate his use of force. He

pushed away from Cansler and stepped back from the police car, unholstering his taser in

the process. With Hanks no longer pressed against him, Cansler turned to face the

officer. Upon seeing the taser, Cansler raised his hands and turned back toward the

police car. With his back to Hanks, Cansler lowered his hands to the front of his body.

Hanks — believing that Cansler was about to retrieve the pocketknife — then tased

Cansler in the back.

                                            2.

      The jury also heard from two witnesses who had observed the altercation. Both

worked at a nearby cell phone store and had a clear view of the interactions between

Hanks and Cansler. One of them, Jimmy Blanco, video recorded part of the exchange.

Two versions of Blanco’s video — a real-time version and a slow-motion version —

were admitted into evidence. 3 The real-time video depicts a seven-second period of the

altercation, starting shortly before the taser deployment and ending shortly after it. The

video shows Cansler, with his back against a police car and his hands above his head,

facing Hanks. Hanks is pointing his taser at the ground with his left hand. Cansler then

      3
          At trial, Blanco and the other cell phone store employee, Giovanni Taylor,
confirmed that Blanco made the video recording and that it accurately depicted the
incident.


                                            6
lowers his hands, turns around, and places his hands on the hood of the police car. As

Cansler is turning to face the vehicle, Hanks moves the unholstered taser to his right hand

and aims it at Cansler’s back. Hanks explained that in turning, Cansler made a series of

movements indicating “that [he] was trying to hide something.” See J.A. 213. 4 That is,

Cansler hid his hands, covered his right pocket, and looked toward that pocket. The

video then shows Cansler, who has his hands on the hood of the police car, turning his

head back toward Hanks and collapsing, having been tased.

                                            3.

       Officer Hanks called two expert witnesses who, having reviewed the video and

other evidence, confirmed the reasonableness of his actions in deploying and using the

taser. Hanks’s first expert, Joseph Stine, had been a police chief and an instructor on

topics that included the use of tasers.    According to Stine, Hanks reasonably tased

Cansler based on the circumstances. As an expert on police practices and the use of

force, Stine recognized that the objective appropriateness of a policeman’s use of force

depends on the circumstances of the situation. He emphasized that the presence of a

weapon “changes the nature of [an] encounter” and can require an escalation of force.

See J.A. 249. Stine also confirmed that “active resistance” by a suspect — such as

Cansler tensing his muscles or turning around without being directed to do so — can

justify a force escalation. See 

Stine, who viewed the video of the incident,


       4
         Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by
the parties in this appeal.


                                            7
stated that Cansler was at one point surrendering by raising his hands. Stine also opined,

however, that the presence of the knife and Cansler’s subsequent resistance — that is,

turning when not instructed to do so and obscuring his hands — justified the taser

deployment and usage. As Stine explained, under those circumstances, Cansler’s head

turn was “a threat” and Hanks’s response was reasonable. See 

       Hanks also called Officer Travis Schaney as an expert concerning the Fairfax

County Police Department’s use of force training program and, in particular, the taser

aspect of that program. As a certified taser instructor, Schaney explained how tasers

operate and the department’s general guidelines for taser usage. 5 Schaney emphasized

that, in order to be armed with a taser, Fairfax County police officers had to complete an

eight-hour instructional course and pass an examination containing written and practical

aspects. Hanks had completed the instructional course and passed the necessary exam. 6

                                            C.

       At the close of the evidence, the district court conducted a charge conference and

considered the contents of the jury charge. Pertinent to this appeal, the court addressed


       5
          In addition to explaining how tasers work, Officer Schaney reviewed the proper
procedures and the training given to ensure proper usage. Schaney emphasized that the
increased use of tasers among police officers in recent years has resulted in a decrease in
injuries to suspects and officers.
       6
         During the trial, Cansler called five witnesses and presented several exhibits,
seeking to counter the evidence of Officer Hanks. Among those witnesses, Cansler
himself testified about the tasing incident, and an expert for Cansler opined that Hanks
had used excessive force. Rejecting that evidence, the jury returned its verdict in favor of
Hanks.


                                             8
Cansler’s seventh proposed instruction, entitled “§ 1983 — Use of a Taser – Degree of

Force” (hereinafter “Instruction No. 7”). See J.A. 46. That instruction provided in full:

          Deploying a [t]aser is a serious use of force that is designed to inflict a
          painful blow. It may only be deployed when a police officer is confronted
          with an exigency that creates an immediate safety risk that is reasonably
          likely to be cured by using the [t]aser.

See 

Instruction No. 7, counsel for Officer Hanks contended that it

would unfairly bolster Cansler’s case.            He maintained that the instruction was

unnecessary in light of the other instructions to be given. That is, Instruction No. 7 was

not needed because the jury had to apply the objective reasonableness standard specified

in the Supreme Court’s Graham decision, and had to assess the taser usage under the

totality of the circumstances. In response, Cansler explained that Instruction No. 7 stems

“from a recent Fourth Circuit case discussing the level of force that a [t]aser is.” See J.A.

336. Cansler argued that Instruction No. 7 needed to be given because it was a binding

legal principle concerning a claim of excessive force when a taser is involved.

          The district court disagreed with Cansler and declined to give Instruction No. 7.

As the court related, the jury had heard extensive evidence regarding the amount of force

inflicted by a taser. The court stressed that the jury had on several occasions reviewed

the video recording of Officer Hanks tasing Cansler.          But the court acknowledged

Cansler’s objection and stated that his lawyer could argue to the jury that a single factor

of the objective reasonableness assessment should be paramount.




                                              9
       After addressing other aspects of the jury charge, the district court returned to

Instruction No. 7. The court emphasized that the rejected instruction — as well as

another proposal that touched on whether Cansler had surrendered to Officer Hanks —

were “subsumed” in the court’s objective reasonableness instruction on excessive force.

See J.A. 338. In particular, the court explained that an instruction would be given about

“the factors that should be considered” in assessing the excessive force claim. See 

the court, Instruction No. 7 unnecessarily “highlight[ed] one fact versus

another fact” and could lead the jury to improperly limit the factors that it considered.

See 

again explained that it was for the lawyers — not the court — to

persuade the jury as to which of the relevant factors were determinative.

       The jury charge advised, inter alia, that the jury was to examine the totality of the

“circumstances shown from the evidence received,” as required by the objective

reasonableness standard. See J.A. 347. The court explained that the jury “may consider”

various factors, including “the threat reasonably perceived by Officer Hanks” and

“whether Mr. Cansler posed an immediate threat to the safety of Officer Hanks or

others.” See 

7 After extended deliberations, the jury returned its verdict in


       7
         The district court specifically charged the jury that it had to decide whether
Officer Hanks’s use of force was reasonable “in light of all the evidence received.” See
J.A. 347. In relevant part, the court explained the inquiry as follows:

      You must determine the degree of force that a reasonable and prudent
      officer would have applied in effecting the arrest under the circumstances
      shown from the evidence received in this case. You should consider all of
      the relevant facts and circumstances leading up to the time of the use of the
      [t]aser that Officer Hanks reasonably believed to be true at the time of the
(Continued)
                                            10
favor of Officer Hanks, finding that he had not contravened Cansler’s Fourth Amendment

right to be free from excessive force.

                                             D.

       After the jury returned its verdict in favor of Officer Hanks, Cansler moved in a

timely manner for judgment as a matter of law, pursuant to Rule 50(b). 8 In supporting

that motion, Cansler argued that the video recording established that he did not pose a

threat to Hanks or anyone else. Furthermore, Cansler maintained that Hanks had offered

only speculation — that is, what Cansler might have been planning to do, and what he

might have possessed — to justify the taser usage. According to Cansler, the evidence

was not sufficient for a reasonable jury to return a verdict in favor of Hanks.




       use of the [t]aser. You should consider those facts and circumstances in
       order to assess whether there was a need for the use of the [t]aser, and the
       relationship between the need for the force and the amount of force applied.

       In determining whether Officer Hanks used excessive force, you may
       consider: [T]he severity of the crime at issue, the extent of the injury
       suffered by Mr. Cansler, the need for the application of force, the
       relationship between the need and the amount of force used, the threat
       reasonably perceived by Officer Hanks, whether Mr. Cansler posed an
       immediate threat to the safety of Officer Hanks or others, [and] whether
       Mr. Cansler was actively resisting or attempting to evade arrest by flight.

See 

       8
         Cansler titled his Rule 50(b) motion as a “Motion for Judgment Notwithstanding
the Verdict.” Although a prior version of Rule 50(b) used that terminology, Rule 50(b)
now refers to a “renewed motion for judgment as a matter of law.” See Fed. R. Civ. P.
50(b); see also Vollrath Co. v. Sammi Corp., 

, 1458 n.2 (9th Cir. 1993)
(describing change in terminology).


                                             11
       The district court denied Cansler’s post-trial Rule 50(b) motion and explained that

there was sufficient evidence for the jury to “conclude that [Officer Hanks’s] use of force

was reasonable under the totality of circumstances.” See J.A. 54. The court stated that

the reasonableness of Hanks’s use of force “was hotly contested at trial” and that the jury

heard ample evidence on the issue. See 

reiterated that the jury had

reviewed the video recording of the tasing “many times,” and that the jurors also saw

photo frames from that recording. See 

the court determined that “the jury’s

conclusion was reasonable based on the evidence at trial.” See 

                                            E.

       Following the district court’s denial of his Rule 50(b) motion and its related entry

of judgment, Cansler noted his appeal. 9 Although neither party has questioned appellate

jurisdiction, we have examined that question sua sponte. After conducting an appropriate

analysis, we are satisfied that jurisdiction exists for this appeal, pursuant to 28 U.S.C.

§ 1291. 10


       9
         When the district court tried the first count to the jury, the court had already
dismissed without prejudice the third count of the complaint. The court had also awarded
summary judgment to Fairfax County and its chief of police on the second count. On
appeal, Cansler does not challenge either the dismissal of the third count or the summary
judgment award on the second count.
       10
          In dismissing the third count of the complaint without prejudice, the district
court gave Cansler leave to amend. Cansler did not amend, however, and no further
action was taken on the third count. A dismissal without prejudice is not typically a final
decision within the meaning of 28 U.S.C. § 1291. See Domino Sugar Corp. v. Sugar
Workers Local Union 392, 

, 1066-67 (4th Cir. 1993). In appropriate
circumstances, however, we take “a practical approach to finality.” See Williamson v.
Stirling, 

, 170 (4th Cir. 2018) (citation and internal quotation marks
(Continued)
                                            12
                                            II.

       We review for abuse of discretion a district court’s decision “to give or refuse to

give a jury instruction.” See United States v. Passaro, 

, 221 (4th Cir. 2009).

Under that standard, a trial court errs if it declines to give an instruction that “‘(1) was

correct; (2) was not substantially covered by the court’s charge to the jury; and (3) dealt

with some point in the trial so important, that failure to give the requested instruction

seriously impaired’” a party’s ability to put on his case. See Noel v. Artson, 

, 586 (4th Cir. 2011) (quoting United States v. Lighty, 

, 366 (4th Cir.

2010)).   We are obliged to “holistically” examine a claim that an instruction was

improperly rejected, viewing it in context of the jury charge as given. See 

a

party challenging a trial court’s decision not to give a proposed instruction “faces a heavy

burden.” See 

de novo the denial of a Rule 50(b) motion for judgment as a matter of

law. See U.S. Equal Emp’t Opportunity Comm’n v. Consol Energy, Inc., 

,

141 (4th Cir. 2017). In conducting that review, we give the nonmoving party the “benefit

of every legitimate inference in [his] favor.” 

v. Wal-Mart Stores, Inc.,

, 301 (4th Cir. 1998)). We will therefore affirm the denial of a Rule 50(b)

omitted). Under the doctrine of cumulative finality, we exercise appellate jurisdiction
“where all claims as to all parties are disposed of while the appeal is pending, and where
the district court could have certified the challenged order for immediate appeal pursuant
to Federal Rule of Civil Procedure 54(b).” See 

appeal was pending,
Cansler filed a notice of dismissal with prejudice of the third count. In the circumstances,
we possess § 1291 jurisdiction. See Houck v. Substitute Tr. Servs., Inc., 

,
479 (4th Cir. 2015).


                                            13
motion if there was evidence “upon which a jury could reasonably return a verdict for

[the nonmoving party].”       

internal quotation marks omitted).         In

performing our de novo review, we do not reweigh the evidence or make determinations

of credibility. See First Union Commercial Corp. v. GATX Capital Corp., 

,

556 (4th Cir. 2005).



                                             III.

       On appeal, Cansler contends that the district court erred in two respects. First, he

maintains that the court erred in declining to give Instruction No. 7 as part of the jury

charge. Second, Cansler contends that the court erred in failing to award him a Rule

50(b) post-trial judgment as a matter of law. We will now address and resolve those

contentions.

                                             A.

                                              1.

                                              a.

       In arguing that the district court erred in declining to give Instruction No. 7,

Cansler initially maintains that his proposal satisfied the first of the three elements of our

examination. That is, pursuant to Noel v. Artson and other decisions on that three-

element assessment, he insists that Instruction No. 7 was a correct statement of law. See

, 586 (4th Cir. 2011). He contends that Instruction No. 7 accords with, and

stems from, our decision in Yates v. Terry, 

(4th Cir. 2016). We therein

affirmed — on a summary judgment record — a denial of qualified immunity to a police

                                             14
officer who had used a taser before being confronted by an immediate danger. Relying

primarily on Yates, Cansler argues that, as a matter of law, a police officer must face an

immediate safety risk to justifiably use a taser. Cansler therefore maintains that the court

had to instruct the jury that Officer Hanks’s taser use was only reasonable if he was

facing an immediate safety risk. Because the jury charge identified an immediate safety

risk as a permissible factor in assessing whether the use of a taser was reasonable —

instead of as a “mandatory” requirement — Cansler contends that the charge erroneously

“omitted the operative legal standard” specified in Yates. See Br. of Appellant 34.

         As explained below, Cansler’s contention misapprehends controlling precedent.

We have never required a trial court to instruct a jury that a police officer must confront a

dangerous situation in order to reasonably use a taser. And such a decree would conflict

with the applicable multi-factor analysis for resolving claims of excessive force. The

pertinent decisions undercut Cansler’s contention and support the rejection of Instruction

No. 7.

                                            (1)

         In its seminal decision in Graham v. Connor, the Supreme Court mandated that

excessive force claims must be assessed under an “objective reasonableness” standard.

See 

, 388 (1989). Applying that standard, the finder of fact — here, the jury

— must compare the degree of force a reasonable officer would have applied to the

degree of force actually used. In order to determine the amount of force a reasonable

police officer would have applied, the Supreme Court’s multi-factor balancing analysis

“requires careful attention to the facts and circumstances of each particular case.” See 

396. The objective reasonableness standard turns on, inter alia, “the severity of the

crime at issue, whether the suspect poses an immediate threat to the safety of the officers

or others, and whether [the suspect] is actively resisting arrest or attempting to evade

arrest by flight.” See 

those factors as part of its balancing analysis, the

Court acknowledged that the objective reasonableness standard “is not capable of precise

definition or mechanical application.” See 

internal quotation marks

omitted).

       Nearly twenty years later, the Supreme Court again emphasized that its objective

reasonableness standard for excessive force claims requires the use of the multi-factor

balancing analysis, instead of a formalistic or rigid test. In its 2007 decision in Scott v.

Harris, the Court rejected an effort to “prescrib[e] certain preconditions” for a police

officer’s use of reasonable force. See 

, 382 (2007). Under the proposed

standard repudiated in Scott, a suspect would have to pose “an immediate threat of

serious physical harm to the officer or others” for a deadly use of force to be reasonable.

See 

Court rejected that proposition and emphasized that the courts “must still

slosh [their] way through the factbound morass of ‘reasonableness.’” See 

Thus, in evaluating excessive force claims, there is no “magical on/off switch that

triggers rigid preconditions” for a police officer’s use of force. See 

Instead, as

the Court explained, “all that matters is whether [an officer’s] actions were reasonable.”

See 

       Although neither Graham nor Scott addressed a taser usage, those decisions

control our analysis of excessive force claims, such as the one being pursued by Cansler.

                                             16
That is, we assess an excessive force claim under Graham’s multi-factor balancing

assessment, and we do not apply “magical on/off switch[es]” or “rigid preconditions” in

evaluating the reasonableness of a use of force. See 

.

                                            (2)

       Against the backdrop of Graham and Scott, we have recently examined excessive

force issues premised on taser usage in decisions relied on by Cansler, that is, Estate of

Armstrong ex rel. Armstrong v. Village of Pinehurst, 

(4th Cir. 2016) and

Yates. In Armstrong, police officers repeatedly tased a mentally ill man who had not

complied with their directions to unwrap himself from a stop sign. Armstrong died

shortly thereafter, and his estate sued under § 1983, alleging that the tasings constituted

excessive force and violated the Fourth Amendment.           The district court awarded

summary judgment to the officers, predicated on qualified immunity. On appeal, we

applied Graham’s multi-factor analysis to the summary judgment record and explained

“that tasers are proportional force only when deployed in response to a situation in which

a reasonable officer would perceive some immediate danger that could be mitigated by

using the taser.” See 

. Viewing the facts in the light most

favorable to Armstrong, the tasings were deemed to be prima facie unreasonable, and

thus a Fourth Amendment violation. We nevertheless affirmed the qualified immunity

awards made because the constitutional right was not clearly established.

       A few months after Armstrong, we rendered our decision in Yates. We therein

reviewed yet another summary judgment record and the denial of a qualified immunity

claim of a police officer. Yates had been stopped for a minor traffic violation and failed

                                            17
to present a valid driver’s license. After ordering Yates out of his vehicle, the officer

tased Yates twice, first while his hands were on the roof of his car and then again after he

had fallen to the ground. Applying the Graham multi-factor analysis — and viewing the

facts in the light most favorable to Yates — we deemed the tasings to be a prima facie

use of excessive force that contravened the Fourth Amendment.

          The Yates decision reiterated Armstrong’s ruling that a taser “‘may only be

deployed when a police officer is confronted with an exigency that creates an immediate

safety risk.’” See 

(quoting 

). Because

Yates was pulled over for a minor infraction, was unarmed, and was not trying to flee or

resist, multiple taser applications were “not objectively reasonable in light of the totality

of the circumstances.” See 

facts in favor of Yates, we ruled that the

officer’s actions justified the denial of qualified immunity and warranted a trial on the

merits.

                                             b.

          With that legal background in mind, we return to Cansler’s contentions regarding

Instruction No. 7. Cansler maintains that Armstrong and Yates required the district court

to instruct the jury in accordance therewith. According to Cansler, Instruction No. 7 is

the only correct statement of the applicable law for claims of excessive force with a taser.

This contention fails for several reasons.

                                             (1)

          First, in both Armstrong and Yates, we applied the Graham balancing analysis to

the factual predicates presented, just as the district court instructed the jury to do here.

                                             18
See 

(“Our analysis of the Graham factors . . . leads us to conclude

that such force was not objectively reasonable in light of the totality of the circumstances

in this case.”); 

(applying Graham factors and concluding

that use of force was unreasonable).      Unlike the factual predicate in this case, the

Armstrong and Yates panels were obliged to accept the facts in favor of those plaintiffs.

The jury charge in this case contained the legal standard utilized in both Armstrong and

Yates — that is, the objective reasonableness standard required by the Supreme Court in

Graham — and the factual findings were left for the jury to determine.

                                            (2)

       Second, neither Armstrong nor Yates requires a trial court to instruct on the legal

conclusions reached in those decisions. In fact, neither of those decisions addressed an

issue concerning jury instructions. They addressed the propriety of qualified immunity

awards in summary judgment proceedings. And appellate opinions do not necessarily

translate into mandated jury instructions. In Noel v. Artson, we rejected the contention

that the trial court had erred in only charging the jury on objective reasonableness —

based on Graham — to assess an excessive force claim. 

. The Noel

plaintiff challenged that instruction and argued that the court should have given another

instruction, based on an opinion in an earlier case. The other instruction would have

advised the jury that an officer’s justification for using force can be abated during an

altercation. We rejected that proposition, explaining that appellate “opinions are not jury

instructions, nor are they meant to be.” See 

Instead, such opinions “articulate



                                            19
general principles of law” that “may guide a district judge’s discretion when formulating

jury instructions.” See 

emphasized in Noel, trial judges possess “‘much discretion’” in crafting

instructions, and our appellate decisions do not usurp their exercises of discretion. See

(quoting Teague v. Bakker, 

, 985 (4th Cir. 1994)). We

explained that judges possess the flexibility — in explaining the objective reasonableness

standard applicable to excessive force claims — to charge a jury without creating the

confusion that could result “‘from a discussion of the specific contentions in a case.’”

See 

(quoting Hardin v. Ski Venture, Inc., 

, 1294-95 (4th Cir.

1995)). The Noel decision thus ruled that the trial court had properly charged the jury by

identifying permissible factors for assessing the reasonableness of the force that was

utilized. That instruction was consistent with Graham and left room for the lawyers to

argue to the jury the specific factors they deemed determinative.

                                            (3)

       Third, the facts of this case are materially different from those underpinning

Armstrong and Yates. Neither of those decisions involved an armed person who had

committed a criminal offense and then fled. Armstrong was unarmed, mentally ill, and

the subject of an involuntary commitment order. Yates was suspected of committing a

minor infraction, was unarmed, and had complied with the officer’s instructions. Those

circumstances stand in stark contrast to the situation confronted by Officer Hanks.

Cansler had committed a criminal offense, possessed a knife, and fled the scene. He then

concealed his hands multiple times (after being instructed not to do so), and he resisted

                                            20
Hanks’s efforts to detain him. Those materially different circumstances — which relate

to the objective reasonableness assessment — show that Armstrong and Yates are not

controlling. See 

(explaining that factually distinguishable opinions

“cannot mechanically supply jury instructions”).

                                              c.

       Put succinctly, neither Armstrong nor Yates established a rule for taser usage that

is applicable to every situation. Although Instruction No. 7 could be a correct legal

statement in limited circumstances, Armstrong and Yates do not usurp a trial judge’s

obligation to give a jury charge that complies with Graham.

                                              2.

       Assuming that Instruction No. 7 was correct, however, Cansler’s appellate

contention is unavailing and fails under Noel’s second element of instructional error. Put

simply, the jury charge of the district court “substantially covered” Instruction No. 7, and

the court gave a sound rationale for its exercise of discretion.

       In identifying the various factors that the jury could consider, the charge explicitly

included “the threat reasonably perceived by Officer Hanks” and “whether Mr. Cansler

posed an immediate threat to the safety of Officer Hanks or others.” See J.A. 348.

Notwithstanding the district court’s rejection of Instruction No. 7, the charge advised the

jury that the presence of a safety risk is an important consideration in an assessment of

objective reasonableness.     And Cansler acknowledges that the jury charge was “an

accurate statement of the law,” based on Graham. See Br. of Appellant 39. With that

admission, the court could not have abused its discretion in rejecting Instruction No. 7.

                                             21
See United States ex rel. Oberg v. Penn. Higher Educ. Assistance Agency, 

,

739 (4th Cir. 2019) (ruling that court did not err in rejecting proposed instruction when

charge substantially covered the issue); United States v. Passaro, 

, 221 (4th

Cir. 2009) (concluding that court properly declined requested instruction where charge

accounted for the issue).

       The district court carefully explained its bases for declining to give Instruction No.

7. As the court reasoned, that proposal would simply highlight “one fact versus another

fact” and could lead the jury to focus exclusively on only one aspect of the evidence. See

J.A. 338. And Cansler, unlike the tased plaintiffs in Armstrong and Yates, actually

possessed a weapon — a fact that could weigh heavily in the objective reasonableness

assessment. The court explained that its rejection of Instruction No. 7 did not preclude a

jury argument on the issue.        Indeed, the court reminded counsel that it was their

prerogative to convince the jury of the factors that might be determinative. As the court

emphasized, the jury charge “subsumed” the concerns addressed in Instruction No. 7 and

covered those concerns in the various factors that the jury was entitled to consider. See

J.A. 338.    In these circumstances, the court’s ruling was a proper exercise of the

discretion reserved to trial judges with respect to jury instructions. 11


       11
          Because Cansler’s challenge certainly fails on the second element of Noel’s
three-element assessment, we need not consider the third element — whether the
proposed instruction “dealt with some point in the trial so important” that it “seriously
impaired” his case. See 

-89 (concluding that challenge to rejected
instruction failed); see also 

(ruling instructional challenge failed
on second element and not analyzing third element).


                                              22
                                            B.

      Turning to Cansler’s second contention of error, he maintains that the district court

erred in failing to grant his Rule 50(b) motion for judgment as a matter of law.

Accepting the objective reasonableness standard, Cansler argues on appeal that the

evidence does not support the jury verdict in favor of Officer Hanks. According to

Cansler, his actions after his “surrender gesture”— that is, placing his hands above his

head as he faced Hanks — undermined any legitimate reason for Hanks to use the taser.

See Br. of Appellant 41-42. Relying on the video recording, Cansler emphasizes that he

did not reach for his pockets as he turned, that his hands were “open and empty at all

times,” and that he was tased only three seconds after placing his hands above his head.

See 

Cansler thus argues that the justification given by Hanks does not show

that his taser usage was reasonable in the circumstances.

      Simply stated, the jury was entitled to return a verdict in favor of Officer Hanks.

The jury repeatedly viewed the video, which showed that the pertinent events were

consistent with Hanks’s testimony. As Hanks explained, he knew that Cansler had a

knife in one of his pockets, and he repeatedly instructed Cansler to remove his hands

from those pockets. 12 In that circumstance, with Cansler’s repeated pocketing of his

hands and Hank’s inability to see Cansler’s hands as he faced the police car, Hanks could

reasonably fear that Cansler was retrieving the knife. And Stine — Hanks’s expert

      12
          Cansler admitted at trial that he had the knife in his pocket, and that Officer
Hanks became aware of that fact during the stop. And Cansler did not deny that he had
inserted his hands into his pockets during the incident.


                                            23
witness on the use of force — confirmed that Hanks had acted reasonably in perceiving a

threat and responding thereto. In short, there was ample evidence to support the jury’s

finding that Hanks did not use excessive force.

      Although Cansler presented some evidence countering the presentation supporting

Officer Hanks, the jury was entitled to reject that evidence. Put succinctly, we are not

permitted to reweigh the trial evidence or assess witness credibility.           In these

circumstances, we must affirm the district court’s denial of Cansler’s Rule 50(b) motion.



                                           IV.

      Pursuant to the foregoing, we reject Cansler’s contentions of error and affirm the

judgment in favor of Officer Hanks.

                                                                             AFFIRMED




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